# [1961] 2 S.C.R. 874

- **Citation:** [1961] 2 S.C.R. 874
- **Court:** Supreme Court of India
- **Decided:** 1959-09-21
- **Case number:** Civil Appeal No. 438of1960
- **Bench:** B. P. Sinha, s. K. DAS, K. c. DAS GUPTA, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1961-2-s-c-r-874-2057
- **Pages:** 17

## Headnote

District Judges-Eligibility for appointment-Appointment
under the Constitution-Qualifications-Period of practice as Advo·
cate, if includes period of practice in Lahore High Court-High
Courts (Punjab) Order, r947, cl. 6-Bar Councils Act, 1926 (38 of
r926), s. 8-Constitution of India, Art. 233(2).
The validitji' of the appointment of respondents 2 to 6 as
District Judges was challenged in a petition filed by the appellant under Art. 226 of the Constitution of India before the High
Court of Punjab, on the ground, inter a!ia, that the appointment
was made in contravention of Art. 233(2) of the Constitntion of
India which lays down that "a person not already in the service
of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years
an advocate or a pleader ... " The respondents had been enrolled
as advocates of the Lahore High Court on various dates between
1933 and 1940, and while respondents 2, 4 and 5 had their
names on the roll of advocates of the Punjab High Court and
were practising as advocates at the time they were appointed as
District Judges in 1950 and 1952, respondents 3 and 6 did not
have their names factually on the roll when they were appointed as District Judges in 1957 and 1958. Respondent 6 had his
name so enrolled after his appointment.
Under a notification dated September 28, 1948, ss. 3 to 16 of
the Bar Councils Act, 1926, came into force in respect of the
East Punjab High Court, by virtue of which a Bar Council was
constituted and a roll of advocates had to be prepared and
maintained by the High Conrt in accordance with s. 8 of the
Act. The proviso to sub-s. (2) of s. 8 of the Act required them
to deposit a fee of Rs. 10 payable to the Bar Council. The
appellant's contention was that after the partition of the
country, which led to the establishment of a separate High
Court for the province of East Punjab the Punjab High Conrt
was established only on August 15, 1947, under the High Courts
(Punjab) Order, 1947, and as the respondents did not have seven
years' standing as advocates with reference to their right of
practice in a court in India after that date, they did not fulfil
the requirements of Art. 233(2) when they were appointed as
District Judges and, therefore, their appointments were constitntionally invalid. The question was whether the period of
seven years referred to in Art. 233(2) must be counted as the
2 S.C.R. SUPREME COURT REPORTS
875
standing of the advocate or pleader with reference to his right
1960
of practice in a court in the territory of India as defined in Art.
I of the Constitution, or whether any right of practice in a court Rameshwar Dayal
- which was in India before the partition of the country in 1947
v.
but which was not in India since partition, could also be taken State of Punjab
into consideration for the purpose of counting the period of
seven years.
Held, that under cl. (6) of the High Courts (Punjab) Order,
1947, read with s. 8(3) of the Bar Councils Act, 1926, an advocate of the Punjab High Court was entitled to count the period
of his practice in the Lahore High Court for determining his
standing at the Bar. Accordingly as respondents 2, 4 and 5 continued to be advocates of the Punjab High Court when they
were appointed as District Judges and had a standing of more
than seven years when so appointed, they fulfilled the requirements of Art. 233(2) of the Constitution.
Held, further, that the effect of cl. (6) of the High Courts
(Punjab) Order, 1947, and s. 8(2)(a) of the Bar Councils Act,
1926, was that from August 15, 1947, to September 28, 1948,
advocates who had been enrolled as advocates of the Lahore High
Court were recognised as advocates entitled to practice in. the
Punjab High Court, and after September 28, 1948, they automatically came on the roll of advocates of the Punjab High Court,
but had to pay a fee of Rs. 10 to the Bar Council. Consequently, respondents 3 and 6 who did not cease to be ad

## Text

De&emb~r 5.
874
SUPREME COURT REPORTS
RAMESHWAR DAYAL
v.
[1961]
THE STATE OF PUNJAB AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, K. c. DAS GUPTA,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
District Judges-Eligibility for appointment-Appointment
under the Constitution-Qualifications-Period of practice as Advo·
cate, if includes period of practice in Lahore High Court-High
Courts (Punjab) Order, r947, cl. 6-Bar Councils Act, 1926 (38 of
r926), s. 8-Constitution of India, Art. 233(2).
The validitji' of the appointment of respondents 2 to 6 as
District Judges was challenged in a petition filed by the appellant under Art. 226 of the Constitution of India before the High
Court of Punjab, on the ground, inter a!ia, that the appointment
was made in contravention of Art. 233(2) of the Constitntion of
India which lays down that "a person not already in the service
of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years
an advocate or a pleader ... " The respondents had been enrolled
as advocates of the Lahore High Court on various dates between
1933 and 1940, and while respondents 2, 4 and 5 had their
names on the roll of advocates of the Punjab High Court and
were practising as advocates at the time they were appointed as
District Judges in 1950 and 1952, respondents 3 and 6 did not
have their names factually on the roll when they were appointed as District Judges in 1957 and 1958. Respondent 6 had his
name so enrolled after his appointment.
Under a notification dated September 28, 1948, ss. 3 to 16 of
the Bar Councils Act, 1926, came into force in respect of the
East Punjab High Court, by virtue of which a Bar Council was
constituted and a roll of advocates had to be prepared and
maintained by the High Conrt in accordance with s. 8 of the
Act. The proviso to sub-s. (2) of s. 8 of the Act required them
to deposit a fee of Rs. 10 payable to the Bar Council. The
appellant's contention was that after the partition of the
country, which led to the establishment of a separate High
Court for the province of East Punjab the Punjab High Conrt
was established only on August 15, 1947, under the High Courts
(Punjab) Order, 1947, and as the respondents did not have seven
years' standing as advocates with reference to their right of
practice in a court in India after that date, they did not fulfil
the requirements of Art. 233(2) when they were appointed as
District Judges and, therefore, their appointments were constitntionally invalid. The question was whether the period of
seven years referred to in Art. 233(2) must be counted as the
2 S.C.R. SUPREME COURT REPORTS
875
standing of the advocate or pleader with reference to his right
1960
of practice in a court in the territory of India as defined in Art.
I of the Constitution, or whether any right of practice in a court Rameshwar Dayal
- which was in India before the partition of the country in 1947
v.
but which was not in India since partition, could also be taken State of Punjab
into consideration for the purpose of counting the period of
seven years.
Held, that under cl. (6) of the High Courts (Punjab) Order,
1947, read with s. 8(3) of the Bar Councils Act, 1926, an advocate of the Punjab High Court was entitled to count the period
of his practice in the Lahore High Court for determining his
standing at the Bar. Accordingly as respondents 2, 4 and 5 continued to be advocates of the Punjab High Court when they
were appointed as District Judges and had a standing of more
than seven years when so appointed, they fulfilled the requirements of Art. 233(2) of the Constitution.
Held, further, that the effect of cl. (6) of the High Courts
(Punjab) Order, 1947, and s. 8(2)(a) of the Bar Councils Act,
1926, was that from August 15, 1947, to September 28, 1948,
advocates who had been enrolled as advocates of the Lahore High
Court were recognised as advocates entitled to practice in. the
Punjab High Court, and after September 28, 1948, they automatically came on the roll of advocates of the Punjab High Court,
but had to pay a fee of Rs. 10 to the Bar Council. Consequently, respondents 3 and 6 who did not cease to be advocates at
any time or stage after August 15, 1947, continued to be advocates of the Punjab High Court till they were appointed as District Judges and had the necessary standing of seven years to be
. eligible under Art. 233(2) of the Constitution.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
438of1960.
Appeal by special leave from the judgment dated
September 21, 1959, of the Punjab High Court, Chandigarh, in Civil Writ No. 1050 of 1959 .
.A. S. R. Chari, M. S. K. Sastri and K. L. Mehta,
for the appellant.
·
S. M. Sikri, .Advocate General for the Punjab, N. S.
Bindra, K. L . .Arora and D. Gupta, for the respondent
No. l.
Gurbackan Singh, Tirth Singh Munjral and~'R. H.
Dhebar, for respondents Nos. 2, 3 and 5 .
.A. V. Viswanatka Sastri, R. Ganapathy Iyer and
D. Gupta, for respondents Nos. 4 and 6.
H. N. Sanyal, Additional Solicitor-General of India,
JLnd D. Gupta, for the Intervener (Union of India).
876
SUPREME COURT REPORTS
(1961)
z96o
M. K. Nambiyar, M. S. K. Sastri and K. L. Mehta,
R
h
D
l for the Interveners (Om Dutt Sharma and B. D.
•mes w:.•
aya Pathak).
State of Punjab
S. K. Das j.
1960; December 5. The Judgment of the Court
was delivered by
S. K. DAS, J.-This ·is an appeal by special leave
from an order of the High Court of Punjab dated September 21, 1959, by which it summarily dismissed a
petition made by the present,appellant under Art. 226
of the Constitution for certain reliefs in respect of
five persons, two of whom are now working as Additional Judges of the Punjab High Court, the third as
Officiating Judge of the same Court, the fourth as
District and Sessions Judge, Delhi, and the fifth as
Registrar, Punjab High Court, Chandigarh. Shorn of
details which are not material, the case of the appellant was and is that the aforesaid five persons, now
respondents 2 to 6 before us, were not qualified to be
appointed as District Judges under Art. 233 of the
Constitution at the time when they were so appointed by the State Government, now respondent l before
us, and, therefore, their appointment as such was
constitutionally invalid; and the appellant .claimed by
way of his main relief that a writ in the nature of a
writ of quo warranto should issue "ousting them from
their office and restraining them from exercising the
powers, duties and functions of the posts they are
holding and from claiming any rights, privileges or
emoluments attached to their office."
Certain other
subsidiary or ancillary reliefs were also claimed details
whereof need not now be stated. We have stated
that the petition was summarily dismissed by the
High Court. An application for a certificate of fitness
having failed in the High Court, the appellant asked
for and obtained special leave from this Court on
August 19, 1960.
The appeal has been contested by the State of
Punjab, respondent 1, and the other respondents of
whom Shamsher Bahadur, Harbans Singh and Gurdev ·
Singh are Justices of the Punjab High Court, Hans
Raj Khanna is District and Sessions Judge, Delhi,
2 S.C.R. SUPREME COURT REPORTS
877
and P. R. Sawhney is Registrar of the High Court.
r96o
These respondents have filed separate affidavits in R
h-- D
1
1
d
f
h
h
b
1
ames war
aya
rep y, an some o t em ave een separate y reprev.
sented and heard. The Advocate-General of Punjab stat~ of Punjab
has appeared and contested the appeal on behalf of
respondent 1. The Union of India was originally a
s. K. Das J.
party-respondent to the petition inasmuch as the
appellant had initially impugned the appointment of
two of the respondents as High Court Judges; this
relief was, however, given up during the pendency of
the special leave petition and on an application made
by the appellant, the name of the Union of India was
struck off by an order dated March 18, 1960, leaving
the matter in dispute limited to the question of the
validity of the initial appointment of respondents 2
to 6 as District Judges only. Later, the Union of India
made an application to intervene in the appeal and
in view of the circumstance that a question of the
interpretation of Art. 233 of Constitution arises in the
appeal, we have allowed the application and heard
the learned Additional Solicitor-General, even though
the Union of India did not appear at an earlier stage
to contest the application which the appellant had
made, to expunge it from the category of respondents.
The other persons B. D. Pathak and Om Dutt
Sharma had also filed a writ petition in the Punjab
High Court challenging the legality of the appointment of P.R. Sawhney who, it appears, had acquitted
certain persons in three criminal appeals decided by
him on January 22, 1959, as Additional District and
Sessions Judge, Delhi, from the decision of a magistrate of Delhi in a case in which B. D. Pathak and
Om Dutt Sharma said that they had been assaulted
by the persons accused in the case. They filed three
revision petitions in respect of the orders passed,
which are pending in the High Court. In view of
these circumstances they have also been allowed to
intervene in the present appeal in so far as it relates
to the appointment of P.R. Sawhney, and we have
heard learned Counsel on their behalf.
UI
878
SUPREME COURT REPORTS
[1961]
'960
On behalf of the respondents who are no longer
Ram'5hwar Dayal working as District Judges a preliminary objection
v.
has been taken to the mainta.inability of the appeal.
State of Punjab It has been contended that the appeal is now limited
to the question of their appointment as District
s. 1<. Das J.
Judges and as they are no longer holding the office
of District Judge, the prayer for the issue of a writ of
quo warranto in respect of that office is no longer maintainable. On behalf of the appellant it has been submitted in reply that reJpondents ,2 to 4 are not permanent Judges of the High Court so that if and when they
revert, they must go back to their substantive posts
of District Judges ; therefore, the question whether
they were validly appointed to t!leir substantive posts
is a live issue and the appellant is entitled to ask this
Court to pronounce on that issu(). The learned Advocate-General has submitted that the State is anxious
to have the decision of this Court.on the legality of the
appointments made in order to avoid future trouble
and the State does not wish to raise any preliminary
objection to the determination of the question in issue.
On a careful consideration of the matter, we have
come to the conclusion that the preliminary objection
must be overruled and in the circumstances of this
case, this Court must decide on the legality of the
impugned appointments.
It won Id facilitate appreciation of the points in
controversy if we state first, in broad outline, the
circumstances in which respondents 2 to 6 were appointed as District Judges.
(1) Respondent 2 (Shamshere Bahadur, J.) was
called to the Bar in England on January 26, 1933, by
the Middle Temple. He was enrolled as an Advocate of the Lahore High Court on May 15, 1933,
and practised as such in that Court. On February 9,
1949, he was enrolled as an Advocate of the Federal
Court of India. On and after August 15, 1947, he
practised as an Advocate of the East Punjab High
Court till he was appointed as District and Sessions
Judge on March 20, 1950. Then he functioned as
Legal Remembrancer of the State Government from
December 1953 to May 1959, when he was appointed
as an Additional Judge of the Punjab High Court.
1
I
2 S.C.R. SUPREME COURT REPORTS
879
(2) Respondent 3 (Harbans Singh, J.) was also
1960
called to the Bar and then enrolled as an Advocate Rameshwar Dayal
of the,Lahore High Court on March 5, 1937. He
v.
worked as an Additional District and Sessions Judge, State of Punjab
Ferozepore, from July 2, 1947, to February 22, 1948.
He then returned to practice at Simla for a short while.
5· K. Das f.
On March 15, 1948, he worked as Deputy Custodian,
Evacuee Property, till April 17, 1950. On April 18,
1950, he was appointed as District and Sessions Judge
and on August 11, 1958, he was appointed as an
Additional Judge of the Punjab High Court.
(3) Respondent 4 (Gurdev Singh, J.) was enrolled
as a Pleader of the Lahore High Coμrt on October 25,
1934, and then as an Advocate of the said Court on
December 20, 1938. He was enrolled as an Advocate
of the Federal Court of India on May 29, 1948, and
was continuously in practice till he was appointed as
District and Sessions Judge on Ii'ebruary 2, 1952. On
July 11, 1960, he was appointed to officiate as a Judge
of the Punjab High Court.
(4) Respondent 5 (Hans Ra.j Khanna) was enrolled as a Pleader of the Lahore High Court on July 17,
1934, and then enrolled as an Advocate of the said
Court on December 20, 1940. He started his practice
as a lawyer a.t Amritsar a.nd he continued his practice
there till his appointment a.s District and Sessions
Judge. His name was borne on the Roll of Advocates
prepared by the East Punjab High Court when he
was appointed as District and Sessions Judge on
February 1, 1952.
(5) Respondent 6 (P. R. Sawhney) was called to
the Bar on November 17, 1930, and was enrolled as
an Advocate of the Lahore High Court on March 10,
1931. After partition he shifted to Delhi and worked for sometime as Legal Adviser to the Custodian,
Evacuee Property, Delhi. Then he practised for sometime at Delhi; he then accepted service under the
Ministry of Rehabilitation as an Officer on Special
Duty and Administrator, Rajpura Township.
On
March 30, 1949, he became the Chairman, Jullundur
Improvement Trust.
On May 6, 1949, he got his
licence to practise as an Advocate suspended. On
880
SUPREME COURT REPORTS
[1961]
'960
April 6, 1957, he was appointed as District and Ses-
-
sions Judge.
Rameshwar Dayal
h
•.
It would t us appear that of the five respondents
Slate of Punjab mentioned above, three, namely, Shamshere Bahadur,
Gurudev Singh and Hans Raj Khanna had their
s. K. Das J.
names on the Roll of Advocates of the Punjab High
Court before they were appointed as District Judges.
In other words, they were practising as Advocates at
the time they were so appointed. Two of them, Harbans Singh and P.R. Sawhney, did not have their
names factually on the Roll when they were appointed as District Judges. P. R. Sawhney, it appears,
had his name so enrolled on October 20, 1959, that is,
after his appointment as District Judge. We are
inviting attention to this distinction amongst the respondents at this stage, because as will appear later
this distinction has some bearing on one of the arguments made before us on behalf of the appellant.
We proceed now to a consideration of the main
contention urged on behalf of the appellant, namely,
that the appointment of respondents 2 to 6 as District
Judges was made in contravention of the provisions
of Art. 233 of the Constitution. It is convenient to
read here Art. 233 of the Constitution:
"Art. 233(1). Appointments of persons to be,
and the posting and promotion of, district judges in
any State shall be made by the Governor of the State
in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the
Union or of the State shall only be eligible to be appointed a district judge if he has been for not less
than seven years an advocate or a pleader and is
recommended by the High Court for appointment."
Now, the argument of learned Counsel for the
appellant has ranged over a wide field; but the point
for decision is a narrow one and depends on whether
respondents 2 to 6 fulfilled the requirements of cl. (2)
of Art. 233 of the Constitution when they were appointed as District Judges by respondent I. That
clause lays down that a person not already in the service
of the Union or of the State shall only be eligible to be
2 S.C.R. SUPREME COURT REPORTS
881
appointed a district judge if (1) he has been for not
x960
less than seven years an advocate or a pleader and R
h
D
1
.
d d b
h H' h C
t c
.
ames war
aya
(2) is recommen e
y t e . ig
our ior appomtv.
ment. As to the second requirement no question state of Punjab
arises here, because admittedly respondents 2 to 6
were recommended by the High Court before their s. K. Das J.
appointment. The dispute is with regard to the first
requirement. Learned Counsel for the appellant has
'contended that respondents 2 to 6 did not fulfil the
requirement of having been " seven years an advocate or pleader" and has put his argument in support
of his contention in the following way. Firstly, he
has submitted that the expression "advocate or
pleader" is an expression of legal import and must be
given its generally accepted meaning at the time
the Constitution was adopted; and that expression
according to learned Counsel means an advocate or
pleader entitled to appear and plead for another in a
Court in India, but does not include an advocate or
pleader of a foreign Court; for this submission he has
relied on the definition of the expression "legal practitioners" in the Legal Practitioners Act, 1879 (XVIII
of 1879); of "pleader" in the Civil Procedure Code,
1908 (Act V of 1908); and of "advocate" in the Bar
Councils Act, 1926 (XXXVIII of 1926). Secondly,
he ha.s submitted that by reason of the use of the
present perfect tense "has been" in cl. (2) of Art. 233,
the rules of grammar require that the person eligible
for appointment must not only have been an advocate
or pleader before but must be an advocate or pleader
at the time he is appointed to the office of District
Judge. Thirdly, he has submitted that the period of
seven years referred to in the clause must be counted
as the standing of the advocate or pleader with reference to his right of practice in a Court in the territory of India as defined in Art. 1 of the Constitution;
in other words, any right of practice in a Court which
was in India before the partition of the country in
1947 but which is not in India since partition, cannot
be taken into consideration for the purpose of counting
the period of seven years.
.
We shall presently consider these submissions in so
882
SUPREME COURT REPORTS
[1961]
Q~
b
~
_
far as they bear on the pro lem be1ore us. But before
Rameshwar Dayal we do so, it is necessary to explain the changes which
v.
took place after the partition of the country and led
State oJ Punjab to the establishment of a High Court of Judicature
for the province of East Punjab (now called the Puns. K. Das J.
jab High Court for the State of Punjab) and how those
changes affected the position of advocates or pleaders
who had th.e right to practice in the Lahore High
Court of undivided Punjab.
The Independence Act,
1947, brought into existence two independent Dominions-India and Pakistan-ands. 9 thereof gave the
Governor-General power to make orders inter alia for
bringing the provisions of the Act into effective operation. In exercise of that power the Governor-General
made the High Courts (Punjab) Order, 1947, which
established as from the appointed day (August 15,
1947) a High Court of Judicature for the then Province of East Punjab. Clause 6 of the Order is important and must be quoted in full:
"6(1) The High Court of East Punjab shall have
the like powers to approve, admit, enrol, remove and
suspend advocates, vakils and attorneys, and to make
rules with respect to advocates, vakils and attorneys
as are, under the law in force immediately before the
appointed day, exercisable by the High Court at
Lahore.
(2) The right of audience in the High Court of
East Punjab shall be regulated in accordance with the
like principles as, immediately before the appointed
day, are in force with respect to the right of audience
in the High Court at Lahore:
Provided that, subject to any rule made or direction given by the High Court of East Punjab in the
exercise of the powers conferred by this Article, any
person who, immediately before the appointed day, is
an advocato, vakil or attorney entitled to practise in
the High Court at Lahore shall be recognised as an
advocate, vakil or attorney entitled to practise in the
High Court of East Punjab."
It is also necessary to notice cl. 14 of the Order which
states inter alia that "the provisions of this Order
shall have effect subject to any provision made on or
2 S.C.R. SUPREME COURT REPORTS
883
after the appointed day with respect to ............... the
I960
High Court of East Punjab by any legislature or other R
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1
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k
h
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,, ames ,war
aya
authority havmg power to ma e sue
prov1s10n.
v.
The points which we must emphasise here are (1) that State of Punjab
under cl. 6(2) the seniority of advocates in the new
High Court as to their right of audience was to be
s. I<. Das J.
regulated by the principle in force in the former High
Court and (2) that under the proviso to cl. 6 any person who before August 15, 1947, was an advocate
entitled to practise in the Lahore High Court was
recognised as an advocate entitled to practise in the
High Court of East Punjab, subject to any rule made
or direction given by the High Court or any provision
made by the legislature or other authority having
power to make such provision. The Bar Councils Act,
1926, except for ss. 1, 2, 17, 18 and 19 did not then
apply to the High Court of East Punjab.
By a notification dated September 28, 1948, the Governor of
East Punjab directed that the provisions of ss. 3 to 16
of the said Act shall come into force in respect of the
East Punjab High Court with effect from that date.
Section 3 of the Act says that for every High Court
a Bar Council shall be constituted in the manner provided by the provisions of the Act. Section 8 of the
Act says (We are reading such portion only as is relevant for our purpose):-
"S. 8(1) No person shall be entitled as of right to
practise in any High Court, unless his name is entered in the roll of the advocates of the High Court
maintained under this Act: ·
Provided that nothing in this sub-section shall apply
to any attorney of the High Court.
(2) The High Court shall prepare and maintain a
roll of advocates of the High Court in which shall be
entered the names of-
(a) all persons who were, as advocates, vakils or
pleader.s, enti~led as of right to practise in t~e High
Court immediately before the date on which this
section comes into force in respect thereof; and
(b) all other persons who have been admitted to
be advocates of the High Court under this Act:
Provided that such persons shall have paid in
884
SUPREME COURT REPORTS
[1961]
'960
respect of enrolment the stamp duty, if any, chargeable
R
h
D
l under the Indian Stamp Act, 1899, and a fee, payable
amcs W!lr
aya
I B
C
.1
h.
.
v.
to tie ar ounc1 , w wh shall be ten rupees in the
State of Punjab case of the persons referred to in clause (a), and in
other cases such amount as may be prescribed.
s. K. Das J.
(3) Entries in the roll shall be made in the order of
seniority and such seniority shall be determined as
follows, namely:-
(a) all such persons as are referred to in clause (a)
of sub-section (2) shall be entered first in the order in
which they were respectively entitled to seniority inter
se immediately before the date on which this section
comes into force in respect of the High Court; and
(b) the seniority of any other person admiGted to
be an advocate of the High Court under this Act; after
that date shall be determined by the date of his
admission or, if he is a barrister, by the date of his
admission or the <late on which he was called to the
Bar, whichever date is earlier:
Provided that, for the purposes of clause (b), the
seniority of a person who before his admission to be
an advocate was entitled as of right to practise in
another High Court shall be determined by the date
on which he became so entitled.
(4) The respective rights of pre-audience of advocates of the High Court shall be determined by seniority."
It is not very clear from the record before us when
the Bar Council was actually constituted for the Punjab High Court, but it was stated at the Bar that the
first election took place in 1950. But on January 13,
1949, the High Court made certain rules under ss. 6
and 12 of the Act. Rule 2(1) of the said rules was in
these terms:
"Rule 2(1).
The Registrar shall classify the
advocates entered in the roll prepared under section 8,
sub-section (2), of the Indian Bar Councils Act as
follows:-
( a) those who have or who on or before the date
of election of the members of the Bar Council of the
High Court will have, for not less than 10 years, been
entitled as of right to practise in the High Court;
2 S.C.R. SUPREME COURT REPORTS
885
(b) those who other than those mentioned in
i96o
clause (a) are or who on or before the date of the elec- R
h- D
1
b
f
B
C
.1 f h
H. h ~anie.s war
aya
tion of mem ers o the
ar
ounc1 o t e
1g
,.,
Court may become entitled to practise in the High State of Punjab
Court."
We have, therefore, two distinct periods to keep in s. K. Das J.
mind. The first period is between August 15, 1947,
to September 27, 1948, when the main provisions of
the Bar Councils Act, 1926, were not in force for the
Punjab High Court and the right of advocates was
regulated by the High Courts (Punjab) Order, 1947.
The second period was from September 28, 1948, when
the main provisions of the Bar Councils Act were
brought into force, rules were made thereunder, a Bar
Council was constituted and a roll of Advocates was
prepared and maintained in accordance with s. 8 of
the said Act. It was in this second period that the
Constitution of India came into force on January 26,
1950.
This is the background against which we have to
consider the argument of learned Counsel for the
appellant. Even if we assume without finally pronouncing on their correctness that learned Counsel is
right in his first two submissions, viz., that the word
"advocate" in cl. (2) of Art. 233 means an advocate of
a. Court in India. and the appointee must be such an
advocate at the time of his appointment, no objection
on those grounds can be raised to the appointment of
three of the respondents who were factually on the
roll of Advocates of the Punjab High Court at the
time of their appointment; because admittedly they
were advocates in a Court in India and continued
as such advocates till the dates of their appointment. The only question with regard to them is
whether they can count in the period of seven years
their period of practice in or under the Lahore High
Court. The answer to this question is clearly furnished by cl. 6(2) of the High Courts (Punjab) Order, 1947,
read with s. 8(3) of the Bar Councils Act, 1926. That
clause lays down that the right of audience in the
High CoUL't of East Punjab shall be regulated in
II2
886
SUPREME COURT REPORTS
[1961]
'960
accordance with the principle in force in the Lahore
llameshwar Davat High Court immediately before the appointed day.
·
v.
·
The relevant rule in the Lahore High Court Rules
Stafr of Punja/> laid down that Advocates who are Barristers shall
take precedence inter se according to the date of call
s. 11· Das f. to the Bar; Advocat.es who are not Barristers, according to the dates when they became entitled to practice in a High Court. The same principle applied to
the East Punjab High Court, and an advocate of the
Lahore High Court who was recognised as an advocate
entitled to practise in the new High Court counted his
seniority on the strength of his standing in the Lahore
High Court. He did not lose that seniority, which
was preserved by the Bar Councils Act, 1926, and we
see no reasons why for ~he purpose of cl. (2) of Art.
233 such an advocate should not have the same
standing as he has in the High Court where he is
practising.
Learned Counsel for the appellant has also drawn
our attention to Explanation I to cl. (3) of Art. 124 of
the Constitution relating to the qualifications for
appointment as a Judge of the Supreme Comt and to
the Explanation to cl. (2) of Art. 217 relating to the
qualifications for appointment as a Judge of a High
Court, and has submitted that where the Constitution.
makers thought it necessary they specifically provided
for counting the period in a High Court which was
formerly in India. Articles 124 and 217 are differently worded and refer to an additional qualification
of citizenship which is not a requirement of Art. 233,
and we do not think that cl. (2) of Art. 233 can be
interpreted in the light of Explanations added to
Arts. 124 and 217.
Article 233 is a self contained
provision regarding the appointment of District
Judges. As to a person who is already in the service
of the Union or of the State, no special qualifications
are laid down and under cl. (1) the Governor can
avpoint such a person as a district judge in consulta.
tion with the relevant High Court. As to a person
not already in service, a qualification is laid down in
cl. (2) and all that is required is that he should be an
advocate or pleader of seven years' standing. The
2 S.C.R. SUPREME COURT REPORTS
887
clause does not say how that standing must be reckonI960
ed and if an Advocate of the Punjab High Court is R
h- D
1
. l d
h
. d
f h'
.
.
h
ames war
ay.i
entit e to count t e per10
o
1s practrne m t e
v.
Lahore High Court for determining his standing at State of Punjab
the Bar, we see nothing in Art. 233 which must lead
to the exclusion of that period for determining his
5· K Das J.
eligibility for appointment as district judge.
'Vhat will be the result if the interpretation canvassed for on behalf of the appellant is accepted?
Then, for seven years beginning from August 15, 194 7,
no member of the Bar of the Punjab High Court
would be eligible for appointment as district judge-a
result which has only to be stated to demonstrate the
weakness of the argument.
We have proceeded so
far on the first two submissions of learned Counsel for
the appellant, and on that basis dealt with his third
submission. It is perhaps necessary to add that we
must not be understood to have decided that the expression 'has been' must always mean what learned
Counsel for the appellant says it means according to
the strict rules of grammar. It may be seriously
questioned if an organic Constitution must be so
narrowly interpreted, and the learned Additional
Solicitor-General has drawn our attention to other
Articles of the Constitution like Art. 5(c) where in'the
context the expression has a different meaning. Our
attention has also been drawn to the decision of the
Allahabad High Court in Mubarak Mazdoor v. K. K.
Banerji (1) where a different meaning was given to a
similar expression occurring in the proviso to sub-s. (3)
of s. 86 of the Representation of the People Act, 1951.
We consider it unnecessary to pursue this matter
further because the respondents we are now considering continued to be advocates of the Punjab High
Court when they were appointed as district judges
and they had a standing of more than seven years
when so appointed. They were clearly eligible for
appointment under cl. 2 of Art. 233 of the Constitution.
We now turn to the other two respondents (Harbans Singh and P.R. Sawhney) whose names were not
(1) A.I.R. 1958 All. 323.
888
SUPREME COURT REPORTS
[1961]
r960
f actuaJJ,y on the roll of Advocates at the time they
-
were appointed as dist.riot judges. What is their
R~meshwar Dayal position? We consider that they also fulfilled the
Sta•• 0;· Punjab requirements of Art. 233 of the Constitution. Har.
bans Singh was in service of the State at the time of
s. K. Das J.
his appointment, and Mr. Viswanatha Sastri appearing for him has submitted that cl. (2) of Art. 233 did
not apply. We consider that even if we proceed on
the footing that both these persons were recruited
from the Bar and their appointment has to be tested
by the requirements of cl. (2), we must hold that they
fulfilled those requirements. They were Advocates
enrolled in the Lahore High Court; this is not disputed. Under cl. 6 of the High Courts (Punjab) Order,
1947, they were recognised as Advocates entitled to
practise in the Punjab High Court till the Bar Councils Act, 1926, came into force.
Under s. 8 (2)(a) of
that Act it was the duty of the High Court to prepare
and maintain a roll of advocates in which their names
should have been entered on the day on which s. 8
came into force, that is, on September 28, 1948.
The
proviso to sub-s. (2) of s. 8 required them to deposit a
fee of Rs. 10 payable to the Bar Council. Obviously
such payment could hardly be made before the Bar
Council was constituted. We do not agree with learned
Counsel for the appellant and the interveners (B. D.
Pathak and Om Dutt Sharma) that the proviso had
the effect of taking away the right which these res-
. pondents had to come automatically on the roll of
advocates under s. 8(2)(a) of the Act. We consider
that the combined effect of cl. 6 of the High Courts
(Punjab) Order, 1947, ands. 8(2)(a) of the Bar Councils
Act, 1926, was this: from August 15, 1947, to Septem- ·
ber 28, 1948, they were recognised as Advocates
entitled to practise in the Punjab High Court and
after September 28, 1948, they automatically came on
the roll of advocates of the Punjab High Court but
1 had to pay a fee of Rs. 10 to the Bar Council. They
did not cease to be advocates at any time or stage
after August 15, 1947, and they continued to be
advocates of the Punjab High Court till they were
appointed as District Judges. They also had the
2 S.C.R. SUPREME COURT REPORTS
889
necessary standing of seven years to be eligible under
1960
cl. (2) of Art. 233 of the Constitution.
These conclusions really dispose of the appeal. We Ramsshwar Dayal
may state, however, that an alternative argument 51.,1, 0;·Pulljab
based on s. 4 of the Legal Practitioners Act, 1879, was
-
also presented before us on behalf of these respons. J<. Das J.
dents. The argument was that the respondents having
been enrolled as advocates in the Lahore High Court
were entitled to practise in any subordinate Court in
India, and that right was not taken away even after
the Lahore High Court ceased to be a High Court in
the territory of India under the Constitution. As we
are resting our decision on conclusions drawn from
the High Courts (Punjab) Order, 1947, ands. 8 of the
Bar Councils Act, 1926, we consider it unnecessary to
examine the alternat.ive argument based on s. 4 of the
Legal Practitioners Act, 1879.
The appellant had devoted a large part oLhis writ
petit.ion to support a contention that the appointment
of the respondent was bad, because it contravened
certain statutory service Rules. It was stated by the
appellant that in the Punjab the judicial branch of
superior appointments c9nsisted of 27 posts inclusive
of eight listed posts; two out of these eight listed
posts were reserved for the members of the Bar and
six for members· of the subordinate judicial service.
On the partition of the Province, it was stated, eleven
superior judicial posts were allotted to East Punjab,
and the number was later increased to twelve. Out
of these twelve posts, the appellant contended, onethird was reserved for the members of the Bar, onethird for what was called the Provincial Civil Service
(Judicial Branch) and the rest for recruitment from
either of the aforesaid two sources on merit. The
grievance of the appellant is that too many persons
have been recruited from the Bar to the detriment of
the members of the service to which the appellant
belongs.
\Ve asked learned Counsel for the appellant to
point out to us any particular statutory rule which
has been contravened by respondent 1 in making the
appointments. Learned Qounsel was unable to point
890
SUPREME COURT REPORTS
[1961]
I96o
out any such statutory rule and except making a
-- l)
general grievance that too many persons have been
Rameshwa'
ayal recruited from the Bar, he was unable even to subState 0;·Ptmjab stantiate that the one-third reservation made in
favour of the service members has been violated. In
s. I<. Das J.
any case, unless there is clear proof of a breach of a
statutory rule in making any of the appointments
under consideration here, the point does not merit
any discussion.
Such proof is singularly lacking in
this case.
De&e•nbet 5.
In the result, the appeal fails and is dismissed with
costs.
Appeal dismissed.
SHRIRAM & OTHERS
v.
THE STATE OF BOMBAY
(JAFER IMAM, K. SuBBA RAO and RAGHUBAR
DAYAL, JJ.)
Critninal Trial-Commitment-If can be 1nadP. u;ithout recording any evidence-Duty of Committing Court-Code of Criminal
Procedure, z898 (V of z898), s. 207-A.
On the date fixed for the inquiry the prosecution intimated to
the Magistrate that it did not intend to examine any witness in
the Magistrate's Court. The Magistrate adjourned the inquiry
to consider whether it was necessary to record any evidence
before commitment. On the adjourned date he expressed his
opinion that no witnesses need be exan1ined, framed charges
against the appellants and committed them to the Sessions
Court. The appellants contended that the Magistrate had no
jurisdiction to commit them to Sessions \vithout examining
witnesses under sub-s. (4) of s. 207-A of the Code of Criminal
Procedure.
Held, that the order of commitment was valid and the
Magistrate had jurisdiction to make it without recording any
evidence. The position under s. 207-A of the Code is tbat:-
(i) the Magistrate is bound to take evidence of only such
eye-witnesses as are actually produced by the prosecution before
the Committing Court;